Posted
by
Soulskill
on Friday May 17, 2013 @09:34AM
from the system-and-method-for-protecting-innovation dept.

dp619 writes "The tactic of patenting open source software to guard against patent trolls and the weaponization of corporate patent portfolios is gaining momentum in the FOSS community. Organizations including the Open Innovation Network, Google and Red Hat have built defensive patent portfolios (the latter two are defending their product lines). This approach has limitations. Penn State law professor Clark Asay writes in an Outercurve Foundation blog examining the trend, 'Patenting FOSS may help in some cases, but the nature of FOSS development itself may mean that patenting some collaboratively developed inventions is inherently more difficult, if not impossible, in many others. Consequently, strategies for mitigating patent risk that rely on FOSS communities patenting their technologies include inherent limitations. It's not entirely clear how best to reform patent law in order to better reconcile it with alternative models of innovation. But in the meantime, FOSS still presents certain advantages that, while dimmed by the prospect of patent suits, remain significant.'"

In addition to that, I think we should decrease the # of years to 5 for all but pharmaceuticals, the poster child of patents. For that industry, 15 years.
You have to create a position that threatens the establishment if you want to gain momentum because only then will they be motivated to compromise to protect their interests.

when i was a kid drug patents were 18 years like all the othersthat was changed in the 90's because there is a long time frame from patenting a new drug to actually selling a product. sometimes as much as 10 years.

Yes, and that time frame is imposed by a government regulatory process known as FDA approval.

I'm fairly sympathetic to the idea of extending patents to account for the regulatory process. A lawyer once told me that a patent is:

A contract between an inventor and the government in which the inventor discloses the best known way to practice an invention so that it can be repeated by others in exchange for the right to prevent others from practicing that invention for a specified period of time.

So that specified time is right now 20 years. Well if the government also imposes a regulatory process that takes 15 years or some other variable but significant duration before sale can take place the patent contract becomes quite meaningless.

Patenting ideas is a very bad idea, and to this date that's not allowed. You want to stifle innovation, start patenting ideas. Thankfully, patents still require a working model, or a detailed drawing, or something tangible to show the patent examiners.

but in the meantime.I think it'd be great if we could get google, red hat, and any other companies to start a foundation, and a charity to help Free/Open Source devs get their works patented, and hold patents that are by RULE licensed under either the BSD/MIT license, or the GPL, or any of the OSL approved licenses.

There needs to be some legal oversight to guarauntee these patents are held under the license the inventor wants, and the license has to be approved(OSI for example).

Don't like to do that but I will quote myself from a similar topic from just a couple of days ago:

Well, I HATE this software argument about patents as, to be honest, EVERYTHING can be described as mathematics. From mechanical systems to genetic code, from electrical designs to source code. You can name anything: I can write it down either as mathematical model using a set of formulas or using a array of numbers. If mechanical designs and electronic systems can be patented so can be software.
The problem with the current patent system, in particular in the US, is that it is a lousy version of an idea from the 19th century. It doesn't take in consideration how fast technology improves, barely acknowledges the immense variety of new tech fields and how their are interconnected and it's filled with abused double standards.
How to solve this problem this problem? Modernize it and make it more strict(only absolutely novel tech for a much more limited time with very specific implementations). Is that perfect? NO. But a business is much more than just inventing stuff; use marketing, funding, quality, support and be secretive to overcome the copycats.

Software can be patented if the patent system was more adequate. If you don't want software patents then I don't want hardware patents either.

Two problems with shorter patents are that R&D costs for many modern inventions are growing exponentially and many of them are 10+ years in the making from initial concept research to first completed prototype.

Patents do not do you much good if they do not last long enough to have a reasonable chance of generating enough revenue to justify the effort before expiring. Companies may choose to opt for industrial secret which has no expiration date other than the time it takes others to figure it out instea

Reforming patent law would be simple, software should simply not be patentable. You can copyright it sure, but no patents.

Thing is, software is very special.

Prior to the computer age, humans generally created "stuff" or "art". Stuff like mechanical things - which are easily patentable, but not copyrightable. "art" things were copyrighted because they didn't generally serve any purpose other than aesthetic or entertainment. Of course, one could create mechanical art, but the utility of such generally wasn't

I think it is probably a bad idea to rely on the expensive patent process to protect open source.
Isn't it better to make the software available and visible so that it can be clearly established that it is prior art, i.e. already known by all, when someone tries to patent drawing rectangles on the screen, or whatever?
I'm probably ignorant, but what's wrong with that approach? Is it less certain to succeed in a court, or is it possible to patent something that someone else has already done and explained how to do?

The prior art idea was my first thought as well. But the problem with the prior art approach is that it does not solve the issue of patent trolls counting on their targets having small budgets rather than actual justice.

I think it is probably a bad idea to rely on the expensive patent process to protect open source. Isn't it better to make the software available and visible so that it can be clearly established that it is prior art, i.e. already known by all, when someone tries to patent drawing rectangles on the screen, or whatever?

The summary doesn't mention this, but a part of what Open Invention Network does is exactly that. Apparently patent examiners only look in certain places for prior art, and OIN can help you pu

Read Stallman's 'Free Software, Free Society' or this well-written piece by Tom Wolfe on Patents:
http://ikhider.com/wp-content/uploads/2013/02/Land-of-Wizards-by-Tom-Wolfe.zip [ikhider.com]
Our patent system was originally conceived as a way to encourage creativity and inventiveness, but now relegated to whomsoever has the deepest pockets for lawyers. A corporation can take someone's idea and claim it as their own and win in a lawsuit simply because their law team is bigger. The patent system needs a serious overhaul.

the nature of FOSS development itself may mean that patenting some collaboratively developed inventions is inherently more difficult, if not impossible, in many others.

... and...

For starters, because of the collaborative, incremental nature of FOSS development, in many cases it would be difficult to determine who from any given community qualifies as a joint inventor. Only those that contribute significant material to the inventive concept embodied in the patent’s claims are considered joint inventors; those that merely implement the invention or that contribute only “prior art” material are not.

... are both entirely true. As the article notes, in order for a patent to be enforceable, all of the inventors have to be properly named on the patent - no extra inventors, and no leaving anyone out - and they all need to either assign the patent to a common entity, or agree to jointly participate in any lawsuit:

For instance, enforcing jointly owned patents in a court of law requires the unanimous consent of all joint owners.

So, yes, it would be difficult, if not nigh-impossible, to enforce these FOSS patents.
Let me repeat that...Enforce these Free and Open Source Software patents.

There seems to be some fundamental confusion about purpose. And who are you going to enforce them against? The trolls, as the summary suggests? But they're trolls because they don't make any products, and if they don't make anything, then they can't infringe. So, what, in the name of "defending against patent trolls", Free OSS foundations are going to start suing manufacturers such as Microsoft, Google, Apple, or Red Hat?

All of that said, there is a very good reason the FOSS community should be filing patents - patent Examiners look to their own databases first for prior art. If FOSS inventors file patent applications, let them be published, and then abandon the application to the public domain, that will add to the set of available prior art and make it more difficult for trolls to get patents. And since you never intend for such applications to issue, they can be drafted and filed very cheaply: throw in your source code, your comments or flow charts or functional specs, slap a single claim on the end, and you're good enough to publish.

Whoever you are, you didn't seem to make an impact since I can't think of any well known opensource products that stopped using GPL because of a single individual. I'm guessing you just wrote a XML parser or something else done a thousand times.

That's because it's tough to find (USPTO Examiners search their own internal databases first, then Google, and then move on to things like IEEE databases. They're not typically searching Github), and if it needs interpretation, then people will disagree about what it shows. For example, if you wanted a patent that claims "1. An operating system, comprising: Linux," then your patent application is going to be anticipated by Linux. However, if you wanted a patent that claims some esoteric way for managin

You don't need to patient open source software to protect it from patent trolls. you just write it and release it to the public. it then becomes prior art which invalidates any later patents.

The tactics of patent trolls is not to sue you and win a lawsuit, it is to sue you or threaten to sue, in the hope that you cough up money in order for them to go away. Prior art doesn't help there; they can sue you no matter how inane or obvious the patent is, and no matter how much prior art there is. You still have to spend money on lawyers and courts.

I don't understand why patenting FOSS offers an advantage over its use as prior art. Is it a "mutually assured destruction" model, where e.g. Google wants patents to assert defensively? Or is it cheaper in the long run to have an explicit patent on something, rather than having to defensively assert it as prior art, if the patent office swing-and-a-misses it and grants an illegitimate patent to some other company?

It's not entirely clear how best to reform patent law in order to better reconcile it with alternative models of innovation.

I'm not the only sentient being here right? I mean, OK, what's the aim of patents? To give incentivize folks to release technology and ideas into the public domain with monopoly protections. FLOSS should be exempt from patents because it directly meets the goal of patents without desiring any damn monopoly at all.

Oh? What's that? How will businesses compete with the fully open software if they can't sue developers over patent infringements? PROBLEM FUCKING SOLVED.

I'm not the only sentient being here right? I mean, OK, what's the aim of patents? To give incentivize folks to release technology and ideas into the public domain with monopoly protections. FLOSS should be exempt from patents because it directly meets the goal of patents without desiring any damn monopoly at all.

That's completely wrong. The maker of proprietary technology is given monopoly protection for making the invention public. If Open Source were allowed to copy that technology then the incentive would be largely gone.

Take Xerox with their extremely successful copying technology. Any competitor could have made a copy of their Xerox copier as long as the software inside was open source? Or Xerox' largest competitors could have developed that software together and buried Xerox?

You cannot solve a problem with the same mind that created it. Right now, the patent offices (on both sides of the Pond) are the problem. If prior art does not stop patent attacks, nothing will. Funding the enemy is the worst solution possible.

While abolishing software patents is the right answer, it's not a feasible short-turn answer. And your silliness about "funding the enemy" pretty much underscores your naivete. Patent offices will continue to be well enough funded to work entirely to the pigopolists' interests. But if you don't play the game (and play it to win), you automatically lose.

When it comes to protecting FOSS openness it seems that patents are an imperfect tool to say the least. A patent is a legal lock. Typically one does not open doors with a lock only. It is possible, of course. But, ideally, what you want is a door knob, too. The Creative Commons has done wonders for copyright IMHO. What about a family of similar staged protective instruments in the place of traditional patents? It seems Congress might have to get involved (Spaghetti Monster preserve us!), but perhaps via exe

Why patent it at all? Even if what you have should not be patentable, but your country somehow allows for software to be patentable, why patent it at all?

Imagine that you make something available and you do not patent it. Somebody else sees it and patents it. Good for him. He just wasted a fuckton of money for something that can be easily proved as having previous art, BECAUSE it is open source.

If you want those patents to defend against other patents, beware of the following:1) You need a LOT of money.2) Y

I wasn't aware that OIN was patenting anything, rather that they were just a group that you could join and donate existing patents to or draw from in order to protect yourself when sued over patents - e.g. a patent pool for self defense. Members were required to not sue each other over any patents in the pool. Or did I miss something?